By Dick Lieberman, Consultant and Retired Attorney
Readers of this blog are aware that if a contractor desires to take an appeal to the Board of Contract Appeals of a contracting officer’s final decision on a claim or dispute, the contractor must do so within 90 days of its receipt of that final decision. 41 U.S.C. § 7104(a). If the contractor submits the notice of appeal 91 or more days after receipt, the Board will dismiss it for lack of jurisdiction. But when the contracting officer sends multiple copies of the final decision using different methods of transmission, when does the 90 days begin to run? The answer is that unless the contractor has requested a specific method of receiving correspondence (such as e- mail), the 90 days begins to run on the date of the receipt of the last correspondence, unless the contracting officer indicates which document is intended to begin the running of the appeal period. TTF, LLC, ASBCA Nos. 59511 et al., Feb. 5, 2015.
In TTF, the Defense Logistics Agency (“DLA”) Avation group awarded three contracts to TTF for aircraft parts (skin panels, access covers and access doors). DLA separately terminated all three for default for reasons not specified in the decision. TTF appealed all three terminations to the Board, but the Government moved to dismiss them because the appeals were dated more than 90 days after the initial emails were sent to TTF notifying them of the terminations and the reasons therefor.
Although done separately, for all three contracts the contracting officer sent TTF the following:
• An email with the complete termination decision contained in an attachment. The email stated that “confirming modifications will be posted on DIBBS [the DLA Internet Bid Board System, a web-based application that contains procurement information related to DLA procurements].”
• A unilateral modification terminating the contract, and the appellant was notified of that modification on DIBBS, which provided an automated email to TTF notifying him of the modification.
• A copy of the termination decision was sent to TTF by certified mail, received by TTF much later.
The Government’s position was that the 90 days for TTF’s appeal began to run on the date receipt of the initial emails (TTF admitted that it had received them on the date transmitted). The Board did not agree. The Board stated that the contractor had to appeal within 90 days from its date of receipt of the final decision, but that it “is the government’s burden to establish the date the final decision was received, but the burden of proof is on appellant to establish that its appeal was timely filed.” The Board noted that it had previously held that sending multiple copies of a final decision, without indicating which if them is intended to begin the running of the 90 day appeal period, confuses a contractor as to the date for appeal of the decision, and entitles the contractor to compute the date from receipt of the last copy. Frasson Lodovico, 14-1 BCA ¶35,525. If a contractor has previously requested to receive correspondence by means of particular method, an earlier copy of a decision received by that method may start the 90 day appeal period.
Finally, the Board pointed out that TTF was notified of the terminations in three different ways: (1) by email; (2) by automated DIBBS system, including links to the termination modifications; and (3) by certified mail. Nothing in any of these communications instructed TTF as to which of the decisions started the 90 day appeal period, which was referred to in all three communications. The Board concluded that the 90 day appeal period began with TTF’s receipt of the copies that were sent by certified mail, and that were received later than the electronic notices. However, one of these appeals was submitted more than 90 days after the receipt of the certified mail date, and the Board dismissed that single appeal as untimely filed, while maintaining jurisdiction over the other two appeals.
It is always a good idea to submit any notice of appeal within 90 days of your first receipt of the contracting officer’s final decision. A notice of appeal is a simple one page document at the Board. Unlike the Court of Federal Claims, where the detailed complaint must be submitted to initiate an appeal, the Board requires only the filing of a simple “Notice of Appeal” which must only:
• Include a statement that the contractor is taking an appeal
• Identify the contract by number
• Identify the Agency or Department
• Identify the decision being appealed (or include and reference a copy of that decision)
• Identify the amount in dispute, if any.
There is no reason to delay filing a notice of appeal. You can do it immediately upon receipt of the final contracting officer’s decision without writing anything more than a simple notice of appeal. However, if you are delayed, unless the contracting officer indicates otherwise or you have stated that email is your preferred method of receiving communications, the starting date for the 90 day period to appeal is most likely to be the date of receipt of the certified mail letter.